Charles Johnson, "The oldest version of the customs of
Newcastle Upon Tyne," Archaeologia Aeliana, 4th series, vol.1
(1925), 170.

Original language:

Latin

Location:

Newcastle-upon-Tyne

Date:

tempore Henry II

TRANSLATION

These are the laws and customs which the burgesses of Newcastle upon Tyne
had in the time of Henry, king of England,
and ought to have. Burgesses may distrain
upon outsiders in the marketplace or outside it, in their houses or
outside them, and within the borough and outside it, without
the permission of the reeve, unless the county court is in session in
the borough or [the outsiders] are
[serving] in the army or castle-guard.
A burgess may not make distraint on another burgess without permission
from the reeve. If a burgess makes in the borough
a loan of anything of his to outsiders,
the debtor shall return it to him if he acknowledges
[the debt]; if he denies
[the debt] he should answer
to justice in the borough. Pleas which are initiated in the borough
should be tried and brought to conclusion there, except those which
belong to the crown. If any burgess is accused in a suit, he shall
not plead outside the borough unless the court fails
[to do justice]. Nor, except
in matters involving the crown, should he defend without day and
term [being assigned] unless
first he falls into error in his pleading.
If a ship comes to harbour at Tynemouth, then wishes to depart,
the burgesses may [first]buy whatever they wish[of its cargo]. If a plea arises
between a burgess and a
[travelling]
merchant, it is to be brought to conclusion before the third ebb-tide.
Merchandize of whatever kind brought by sea ought to be put ashore,
except for salt, while herring should be sold
in the ship. If anyone holds land in
burgage for a year and a day,
lawfully and without claim [against it],
he is [thereafter] not answerable
to any claimant, except one who has been out of the kingdom or who was
a child not old enough to bring legal action. If a burgess has a son
[living] with him,
the son shall share in the liberty of
his father. If a villein comes to reside
in the borough and lives there for a year and a day as if a burgess,
he may stay in the borough forever, unless he or his lord had previously
announced that he would reside only for a set term. If anyone accuses
a burgess of anything, he cannot [prosecute
by] combat with the burgess, but the burgess may defend himself
by his law, unless
[the accusation] is of treason whereby
he is obliged to defend himself by battle. Nor can a burgess do combat
against an outsider, unless he first quits
the burgage. No merchant, unless a burgess, can inside
[or
outside] the town buy wool, leather, or other merchandize
from anyone except burgesses. If a burgess commits a wrong, he shall
give 6 ounces [of
silver] to the reeve. There is no
merchet, heriot, blodwit, nor stengesdint
in the borough. Any burgess may have his own
oven and hand-mill if he wishes,
saving the rights of the king's oven. If a woman commits a
wrong concerning bread or ale, no one
should interfere except the reeve. If she commits the wrong twice,
let her penalty be chastisement. If she commits wrong a third time,
she is to be brought to justice. No-one
except a burgess may buy cloth for the purpose of dyeing, nor make or
cut[cloth].
A burgess may give or sell his land, unless
[his right to] it is challenged,
and go freely and peacefully wherever he wishes.

DISCUSSION

As its name indicates, Newcastle began as a settlement servicing the
Norman castle build to guard a crossing of the Tyne. Within a century
it had its own distinctive society and economy, as revealed in the list
of customs above. Three different versions of the custumal are known.
That which Johnson believed the oldest is very similar to the customs
of a group of Scottish boroughs  Newcastle at times (including
the second quarter of the 12th century) having been under Scottish rule.
The other versions were copied into the Percy Chartulary (pub.
Selden Society, v.117, p.333) and a charter granted ca. 1180s to the
borough of Wearmouth (Co. Durham), by its lord the bishop of Durham.
The early charters of English kings granted to Newcastle, by John and
Henry III, confirmed existing customs of the town from the time of
Henry II. It is presumably the above customs that were meant, although
the reference in the opening sentence to King Henry is more likely to
Henry I.

The Newcastle-upon-Tyne custumal provides an early specification of
the laws referred to only generally in charters. Few documents so well
illustrate the interrelationship between charters of liberties and
custumals. So much does this document resemble a charter's recitation
of privileges granted, as opposed to an itemized or capitularized
custumal, that Ballard adopted it as such in his
comparative study of the
earliest group of charters of liberties. The existence of this
early custumal, which survives in several versions, has led to
Newcastle's development as a borough being
described as "precocious" (Edward Miller, "Rulers of Thirteenth Century
Towns: The Cases of York and Newcastle upon Tyne," Thirteenth Century
England I: Proceedings of the Newcastle Upon Tyne Conference 1985,
Woodbridge: Boydell Press, 1986, 129). Although tempore Henry II
the Newcastle customs did serve as a model for those granted to lesser
towns in the north-east (Gateshead, Hartlepool, and Wearmouth), the
seeming precocity may be an illusion consequent to the scarcity of
written evidence of early borough customs. It is worth comparing
these customs with those of the burgesses of
Bury St. Edmunds, from a similar period.

NOTES

"had in the time of Henry"
The Percy version states that the laws were granted by Henry I
to the burgesses, but this may be a scribal assumption.

"distrain upon outsiders"
The principle regarding distraint
was that burgesses had to capitalize on almost any opportunity to compel
outsiders  who were not usually accessible  to answer to
legal actions brought against them. Whereas, the burgess' person and
property were always on hand, and therefore distraint against them
should go through due process. The Percy version identifies the outsiders
more explicitly as country-dwellers, and clarifies that they may not be
distrained if they have come to the borough to attend the county court.
The Wearmouth allows as exemption from distraint only that the outsiders
have come to town on business of the bishop, but this is evidently an
adaptation of the original to Wearmouth circumstances (it being clear
from other evidence that the laws had been edited with that in mind).

"a loan of anything of his to outsiders"
To the clause concerning loans to outsiders, the Wearmouth version
adds the proviso that "burgesses not use this privilege to vex villeins
unjustly"  reflecting what was later a growing tendency to use
litigation as a pressure tactic  but again this may be a
Wearmouth adaptation.

"buy whatever they wish"
It was not uncommon for towns to claim a pre-emptive right over cargoes
of ships which moored, however temporarily, within their boundaries.
The Percy version incorporates a scribal error in adding "not" to
"wishes to depart" and it is this version which found its way into
Ballard's compilation. The Wearmouth version substitutes Wearmouth
for Tynemouth.

"travelling"
This qualifier before merchant is made explicit in the other versions.

"sold in the ship"
The Wearmouth version gave the option for herring to be brought ashore
to be sold in town.

"the son shall share"
Concerning the son's right to share in the burgess privileges of
his father, the Percy and Wearmouth versions more explicitly state
that this is while the son still lives under the same roof: "while
in his house, at his table".

"villein comes to reside"
The alternate versions are rephrased to clarify the contrast between
an (escaped?) villein who remains a year and a day without challenge
by any lord, and a villein whose lord has given him licence to reside
in town temporarily (e.g. in order to trade on behalf of his lord).

"quits the burgage"
This seems to imply that a man had first to give up his burgess status
before he was allowed to choose judicial combat as a defence.
The other versions extend the exceptions to include any serious felony
(i.e. presumably punishable by death), while the Wearmouth version
specifies the preferred defence of a burgess as compurgation by
36 supporters.

"or outside"
The version of the laws found in the Scottish boroughs includes
"outside the town" among the prohibited locations, and the PRO version
appears from the wording to have accidentally omitted this. The Percy
version specifies the locations as "neither in the marketplace nor in
the countryside"; presumably the immediate countryside within
the jurisdictional boundaries of the borough were intended, since
it is hard to see how a borough could control the actions of a
merchant outside its jurisdiction.

"6 ounces of silver"
According to Johnson, this was worth 10s. Judging from the equivalent,
more explicit clause used by the Scottish boroughs, it relates to a
ceiling on the amount the borough court could fine a burgess.

"merchet, heriot, blodwit, nor stengesdint"
Merchet was a fee for a lord's permission for his villein's daughter
to marry, and heriot a death duty payable to the lord of a deceased
villein. Towns were anxious to be free of dues or services associated
with agricultural communities. Blodwit was a fine for an assault
drawing blood. Stengesdint was a fine for striking with a stick
(i.e. causing injury without drawing blood).

"oven and hand-mill"
The point about personal ovens and hand-mills was that there were
typically communal facilities for baking and, especially, milling
that burgesses were expected to use (since the revenues therefrom
went towards paying the borough farm). The Percy version omits
the proviso about the king's rights, while the Wearmouth version
substitutes the rights of the bishop.

"wrong concerning bread or ale"
This related to breaking the assizes
of bread and ale, first set down in writing in the time of Henry II.
The Newcastle customs indicate that a first offence met with a warning,
a second offence with a stern, public warning, but on the third
the offender would be brought before the court for punishment.
Women were much involved in selling the products of their
baking and brewing; the Percy and Wearmouth versions, however,
do not specify a sex of the offenders, and they seem to leave it
to the discretion of the reeve as to whether a small fine was
required for the first and second offence.

"justice"
A later version adds that the punishment due the offender will be decided
by communal decision of the burgesses.

"cut"
Probably meaning cut a cloth into smaller pieces in order to retail it.

"give or sell his land"
The Wearmouth version is more explicit in stating that the right
to dispose of real estate was a freedom from requiring any licence
from a lord or from obtaining the advance agreement of one's heirs.
In contrast to the latter freedom, at Nottingham heirs were permitted
to redeem property sold by a relative, even against the
purchaser's will, so long as they promised in the gildhall to pay
the purchaser, within a year and a day, the price he had given for
the property; compensation for improvements to or deterioration of
the property since its sale might also be negotiated.